Van Insberghe v Brassard, 2011 ABQB 429

Court of Queen ’ s Bench of Alberta Citation: Van Insberghe v Brassard, 2011 ABQB 429 Date: 20110706 Docket: 1103 10212 Registry: Edmonton Between: John Van Insberghe and Emily McNamara by Her Litigation Representative John Van Insberghe Applicants/Plaintiffs - and - Robert Brassard Respondent/Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] This is an application by the father on his own behalf and on behalf of his 15 year old daughter for a Restraining Order.

The father provided the Court with a great number of miscellaneous documents to review in morning Chambers, and was not able to assist the Court meaningfully in his submissions. [ 2 ] The Applicant Plaintiff issued a Statement of Claim filed on June 27, 2011 in which amongst other things he sought a Restraining Order enjoining and restricting the Respondent Defendant from being within 50 metres of his residence, and restraining him from contacting the Plaintiff Applicant either directly or indirectly.

The basis for the Restraining Order is that the Respondent has been intimidating and threatening to both himself and his daughter, and they have been the subject of humiliation and harassment by the

Respondent. [ 3 ] Since the Statement of Claim and Affidavit in Support of the injunctive relief were only filed on June 27, 2011, the Respondent has not had the opportunity of filing a responding Affidavit. However the Respondent submits that there is no merit to the Interim Injunction on the face of the Record on the basis of the filed materials, and that it is also premature.

The Respondent submits that the application for a Restraining Order should fail because there is presently no basis upon which the Applicant Plaintiff could or should be granted a Restraining Order. [ 4 ] These parties are next door neighbours in St. Albert. The Applicant had his house surveyed in the Spring 2010, and determined that the fence between his property and the property located next to him was improperly located one foot onto his property.

The Applicant then advised his next door neighbour that he intended to take down the fence and replace it with a 6 ft. high fence that would extend from the back to the front of the property to include the entire side of his house. [ 5 ] When a survey peg was somehow broken off at the ground level, the Applicant deposes that he went to replace this peg with a steel peg on May 8, 2011, at which point the Respondent came out of his house and allegedly tore the steel peg out of the ground.

It is also alleged that the Respondent then made a threatening motion by raising his right arm fist clenched, and that the Respondent’s wife had difficulty getting the Respondent back into his house and told him to remain there. [ 6 ] RCMP in St. Albert were contacted about this incident, but no criminal charges were laid. [ 7 ] During the Father’s day weekend in 2011, the Applicant alleges that the Respondent made remarks to his daughter that were humiliating when she was out in the yard cleaning. It is submitted that the daughter was by herself, and felt humiliated and threatened.

As a result of this incident, the Applicant apparently had words with the Respondent on June 24, 2011 and complained about how the Respondent had treated his daughter. [ 8 ] The Applicant acknowledges telling the Respondent to f-off, at which time the Respondent allegedly tried to coax the Applicant to come out of his vehicle and challenged him to fight.

The Applicant also alleges that the Respondent spit a clear fluid onto the street when he was questioned about harassing and humiliating the Applicant’s daughter. [ 9 ] The Applicant submits that he is not safe in his house, and that his daughter and wife are very nervous and uncomfortable in the house as a result of the Respondent’s threatening and harassing conduct. Notwithstanding the Applicant’s claims that the fence was located one foot onto his property, the Respondent has provided the Court with some evidence from a third party indicating that the allegedly offending fence was properly located.

Conclusion [ 10 ] The Applicant in seeking injunctive relief in this matter and therefore must comply with the traditional tripartite test for interlocutory relief. [ 11 ] There is clearly a serious issue to be tried in this matter given that both sides dispute the allegations of the other. [ 12 ] The Respondent submits that the Applicant Plaintiff will not suffer irreparable harm unless he is granted injunctive relief, however the Applicant Plaintiff could or would suffer embarrassment and humiliation as a result of the harassment and conduct of the

Respondent. While damages can remedy parts of the improper conduct if it is found to actually to have occurred, an injunction is still potentially necessary in the circumstances to protect the Applicant and his family from possible real physical harm and harassment.

This could likely occur if the Applicant is to be believed at the end of this process, given the explosive nature of neighbourhood feuds generally, and this one in particular. [ 13 ] As for the balance of convenience, it is clearly an unreasonable request that a 50 metre restraining area against the Respondent be put in place as this would effectively mean that the Respondent, who is a neighbour who lives a metre or two away from the Applicant, would not be able to live in his own home. However the “no contact” provisions could be adjusted so as to not set up the Respondent to fail.

The Applicant and his family are entitled to feel safe within their own home as long as it does not require a neighbour to move away from his own home. [ 14 ] On balance then I conclude that Applicant can potentially satisfy all elements of the tripartite test, namely that there is a serious issue to be tried, that he and his family could suffer irreparable harm if the injunctive relief is not granted; and that the balance of convenience could lie in favour of his application.

Whether or not the application for injunctive relief has any merit is still to be determined, however it is not premature at this point as argued by the Respondent. [ 15 ] The Respondent indicated that he has every intention of defending if given that opportunity. The Respondent shall be given 15 days within which to file his Affidavit materials in response to my offices, and the Applicant will be given a further 10 days to respond. If this process or

schedule does not meet with the approval of counsel or the Applicant, they can contact my office. I will then determine if interim injunction relief is warranted, or what further steps are required. Heard on the 30 th day of June, 2011. Dated at the City of Edmonton, Alberta this 5 th day of July, 2011. Donald Lee J.C.Q.B.A. Appearances: John Van Insberghe Appeared on Behalf of the Plaintiffs Dino Bottos Pringle MacDonald & Bottos for the Defendant